Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Minimum Age Convention, 1973 (No. 138) - South Africa (Ratification: 2000)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes the Government’s statement that, since 1995, South Africa has committed itself to the eradication of child labour. The signing of the MOU with the ILO in 1998, the SAYP of 1999, and the CLAP of 2003, are examples of initiatives embarked upon to eradicate child labour. In conjunction with these processes, a multi-sectoral and interdisciplinary child labour enforcement strategy was developed in 2002, and inspectors of the Department of Labour and other key relevant role players were trained nationally. It also notes the Government’s statement that the South African child rights programming institutional framework has undergone transformation. As a result of the process of transformation, finalized at the beginning of 2005, the National Programme of Action is now referred to as the National Children’s Rights Advisory Council, which consists of all national government departments and civil society. Moreover, in June 2003, the Child Labour Action Programme Implementation Committee (CLAPIC) was formed in order to intensively drive the process of finalizing the Child Labour Action Programme (CLAP). Members of CLAPIC include the Departments of Labour, National Treasury, Office on the Rights of the Child, Social Development, Health, Youth Commission, Agriculture, organizations of community and development interests, organized business and organized labour. The role of CLAPIC is to ensure that departments represented on the structure implement the action steps that they identified as their contribution towards eliminating child labour. The Committee takes due note of this information and requests the Government to continue providing information on national policy measures designed to ensure the effective elimination of child labour, and on the results attained. 

Article 2, paragraph 1. Scope of application. 1. Self-employment. In its previous comments, the Committee had noted that both section 43(1) of the Basic Conditions of Employment Act (BCEA) and section 52A of the Child Care Act prohibit the employment of a child under 15 years. It had noted, however, that both the BCEA and the Child Care Act appeared to exclude self-employment from their application. The Committee had asked the Government to indicate any measures taken or envisaged to ensure the application of the Convention to all types of work outside an employment relationship, such as self-employment.

The Committee notes the Government’s statement that child labour is a complex and multidimensional phenomenon which is a result of many varied factors such as poverty, high adult unemployment rates, and the increase in the number of child-headed households due to the escalation of HIV/AIDS. It is therefore inevitable that children will consider self-employment as a means of survival for themselves and their families. It notes the Government’s information that, although currently there are no measures taken by the South African Government to extend the application of the Convention to include all types of work, including self-employment, the South African Government has a wide range of existing programmes aimed at directly and indirectly improving the situation of its children, such as poverty eradication programmes. The Committee also notes the Government’s information that the matter of covering self-employment in the BCEA will be brought before the relevant stakeholders for consideration.

The Committee asks the Government to provide information on any relevant impact of the range of programmes aimed at directly or indirectly improving the situation of self-employed children, including the measures envisaged in the Child Labour Action Programme (CLAP) of 2003 on reducing the number of self-employed children under 15 years. It also asks the Government to provide information on any steps towards the inclusion of self-employment in the BCEA. The Committee finally asks the Government to provide information on the situation of self-employed children, in particular with regard to their age, number and the types of work they undertake, as well as their involvement in types of hazardous work.

2. Employment on merchant vessels. The Committee had previously noted that section 3(3) of the BCEA provides that this Act does not apply to persons employed on vessels at sea, in respect of which the Merchant Shipping Act of 1951 (Act No. 57) is applicable. The Committee had requested the Government to indicate the national legislation that fixes the minimum age for admission to employment or work. The Committee notes the Government’s information that the Merchant Shipping Act fixes the minimum age for admission to employment on merchant vessels at 16 years. The Committee takes due note of this information.

Article 3, paragraph 2. Determination of hazardous work. The Committee had previously noted that, by virtue of section 85 of the Mine and Health and Safety Act of 1996, no person may cause or permit an employee under 18 years to work underground in a mine, and no employee under the age of 18 may work underground in a mine. The Committee had also noted the Government’s information that the Occupational Health and Safety Act prescribes the circumstances in which children should not work at all. It noted the Government’s reference to a list of types of hazardous work prohibited to children under 18 years. The Committee had asked the Government to indicate which legal provision contains such a list and to supply a copy of it. The Committee notes that no information is provided in the Government’s report on this point. The Committee once again asks the Government to indicate whether any list of types of hazardous work which are prohibited for children under 18 years of age exists in the relevant legislation and to supply a copy thereof. If not, the Committee reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of employment or work which, by their nature or the circumstances in which they are carried out, are likely to jeopardize the health, safety or morals of young persons under 18 years, shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist. It accordingly asks the Government to provide information on the measures taken or envisaged to determine the types of hazardous work in accordance with Article 3, paragraph 2, of the Convention.

Article 3, paragraph 3. Exception to the age of 18 years for admission to hazardous work. The Committee had previously noted that, according to section 44 of the BCEA, the Minister, on the advice of the Employment Conditions Commission, may make regulations to prohibit or place conditions on the employment of children who are at least 15 years of age. The Committee notes the Government’s statement that the Department of Labour is in the process of drafting regulations pertaining to children between 15 and 17 years. The terms of reference for the drafting were presented to the Employment Conditions Commission (ECC) in May 2005 and subsequently approved. The regulations will be drafted through a process of consultations with the organizations of employers and workers concerned and other relevant stakeholders and it is envisaged that consultations will be finalized in October/November 2005.

The Committee once again reminds the Government that, under the terms of Article 3, paragraph 3, of the Convention, national laws or regulations may, after consultation with the organizations of employers and workers concerned, authorize the performance of types of hazardous work by young persons between 16 and 18 years of age, on condition that the health, safety and morals of the young persons concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. It also recalls that this provision of the Convention consists of a limited exception to the general rule of the prohibition placed upon young persons under 18 years of age, and not a total authorization for the performance of types of hazardous work from the age of 16 years. The Committee therefore hopes that the Government, in adopting the regulations pursuant to section 44 of the BCEA, will take into consideration that the performance of types of hazardous work is only authorized for young persons between 16 and 18 years of age in accordance with the requirements of Article 3, paragraph 3, of the Convention.

Article 7. Light work. The Committee had previously noted that national laws do not allow the granting of exemptions for the employment of children between the ages of 13 and 15, as the employment of children of that age is expressly prohibited by national law. It had nonetheless noted that, according to the 1999 Survey of Activities of Young People (SAYP), quite a number of children under 15 years appeared to be economically active in some way or another. The Committee had requested the Government to indicate the measures taken or envisaged in respect of provisions to determine light work activities and the conditions in which such employment or work could be undertaken by young persons of 13 years or more. The Committee notes the Government’s information that, even though the SAYP of 1999 reveals that a number of children were economically active, South African domestic employment law prohibits the employment of children below the age of 15 years, and this includes the performance of light work. It notes the Government’s information that the children identified by the SAYP were compelled by economic circumstances to engage in some form of economic activity for survival purposes. However, the Committee takes note of the situation reported in CLAP that 728,000 (6.8 per cent) children aged 5-14 years were found to work three hours and more per week, and 266,000 (2.5 per cent) to work 12 hours and more per week. The Committee also notes that the majority of children aged 5-14 years found working come from deep rural areas.

The Committee recalls that the specified minimum age for admission to employment or work in South Africa is 15 years. It reminds the Government that, by virtue of Article 2, paragraph 1, of the Convention, no one under 15 years of age shall be admitted to employment or work in any occupation. It also recalls that, by virtue of Article 7, paragraphs 1 and 3, of the Convention, national laws or regulations may permit persons from the age of 13 years to engage in light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the authority or their capacity to benefit from the instruction received. According to Article 7, paragraph 3, of the Convention, the competent authority shall determine what is light work and shall prescribe the number of hours during which and the conditions in which, such employment or work may be undertaken.

The Committee requests the Government to take the necessary steps to ensure that no children under 15 years are admitted to work. While noting the absence of regulation of light work in the relevant legislation, the Committee is nonetheless of the view that the admission of children from 13 years to perform light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, will permit them to help their parents in undertakings, mostly in the rural areas, while also enabling them to attend school. Therefore, the Committee strongly encourages the Government to include provisions regulating light work in the relevant legislation, in accordance with Article 7 of the Convention.

Article 8. Artistic performances. Following its previous comments, the Committee notes with interest the Government’s information that Sectoral Determination 10, regarding children in the performance of advertising, artistic and cultural activities, was promulgated in July 2004 pursuant to section 50(2)(b) in order to assist the Department of Labour with the employment of children under 15 years within the advertising, artistic and cultural industries. It notes the Government’s information that it is required by law that before engaging children in performances, employers must apply in writing to obtain a permit from the Department of Labour. In order to facilitate the processing of applications, an electronic system was automated by the Department of Labour. In addition, a national register is kept and updated on a monthly basis. The Committee notes the Government’s statement that, to date, a total of 1,261 applications have been processed involving 5,457 children in this sector. The Committee notes that Sectoral Determination 10 regulates conditions for the employment of children in the performance of advertising, artistic and cultural activities, such as: the stipulation of a written contract of employment with the parent or guardian of the child, specifying all data of the child and the conditions of work; regulations on payment; conditions and hours of work; and offences and penalties related to the inobservance of the Determination. The Committee takes due note of this information.

Article 9, paragraph 3. Registers of employment. The Committee had previously noted that section 31 of the BCEA requires every employer to keep a record containing a list of information on his/her employees, including the date of birth of any employee under 18 years of age. It had noted that, according to section 28 of the BCEA, section 31 does not apply to an employer who employs fewer than five employees. The Committee had accordingly asked the Government to take the necessary measures to ensure that every employer, regardless of the number of persons he/she employs, is required to register such information, and to provide information about these measures. The Committee notes the Government’s information that the Sectoral Determination on the small business sector regulates this provision. The Committee requests the Government to indicate whether the Sectoral Determination on the small business sector requires the employer to keep registers containing the names, ages and dates of birth of persons whom he/she employs or who work for him/her and who are less than 18 years of age, in conformity with Article 9, paragraph 3, of the Convention.

Part IV of the report form. The Committee notes the Government’s information that, through training and support, inspectors of the Department of Labour are being empowered to present thoroughly investigated and researched cases before the courts in order to ensure a successful prosecution and conviction of offenders. It notes the Government’s information that one case was investigated in the north-west farming sector regarding the owner of a farm in the Tosca area. He was found guilty and fined 15,000 rands in the Vryburg Magistrates Court for using children as labourers. The Committee asks the Government to continue providing information on any decisions handed down by courts of law or other tribunals involving questions of principle relating to the application of the Convention.

Part V of the report form. In its previous comments, the Committee had expressed its concern at the situation reported in the SAYP in 1999 that more than 2 million children between the ages of 5 and 14 years are in paid labour. The majority of these children work in subsistence farming, trade, commercial agriculture and services. The Committee notes the Government’s statement that the Government of South Africa concurs that additional research should be conducted as a matter of urgency in order to ascertain what the picture of child labour looks like in the country. Discussions are under way within the Government in respect of collecting data on children’s rights issues, including child labour. It notes that according to CLAP, a follow-up to the SAYP should be done as soon as possible to assess the changed situation, especially in the context of the HIV/AIDS pandemic, and to assist with monitoring and evaluation. The Committee notes the Government’s information that the Department of Labour conducts blitz inspections of child labour. The last blitz inspections were conducted in 2005. The Committee invites the Government to continue providing information on the manner in which the Convention is applied, including statistical data on the employment of children and young persons, extracts from the reports of inspections services and information on the number and nature of violations detected involving children.